Tarantino argued that it was unable to timely notify Westchester because Tarantino did not know Westchester's address. Tarantino said that it “amended its petition on December 13, 2018 to include the proper service address for Westchester,” and that it gave the requisite notice to Westchester on December 14.

Tarantino contended that it was not required to notify Westchester earlier because its action had been automatically abated in November 2018 after another defendant informed the court that Tarantino also had not given it adequate notice. Tarantino argued that an order denying attorneys' fees encouraged dilatory plaintiffs to voluntarily dismiss the suit, give notice, and refile, which would delay and increase the cost of litigation.

Texas Insurance Law

Section 542A.007(d) provides:

If a defendant in an action to which this chapter applies pleads and proves that the defendant was entitled to but was not given a presuit notice stating the specific amount alleged to be owed by the insurer under Section 542A.003(b)(2) at least 61 days before the date the action was filed by the claimant, the court may not award to the claimant any attorney's fees incurred after the date the defendant files the pleading with the court. A pleading under this subsection must be filed not later than the 30th day after the date the defendant files an original answer in the court in which the action is pending.

Under § 542A.003(b)(2),

not later than the 61st day before

filing an action under Texas Insurance Code Chapter 542A, the plaintiff must give the defendant written notice of:

the specific amount alleged to be owed by the insurer on the claim for damage to or loss of covered property.

The District Court's Decision

The court granted Westchester's motion.

In its decision, the court ruled that the “plain text” of Texas insurance law foreclosed Tarantino's arguments.

The court reasoned that Section 542A.007(d) conditioned attorneys' fees “solely on whether the plaintiff timely gave the defendant presuit notice” under Section 542A.003(b)(2), which Tarantino failed to do. According to the court, there were “no equitable exceptions to this requirement.”

The court added that there also was no exception based on the abatement that automatically went into effect after Tarantino filed its suit, reasoning that allowing such an exception would “undermine” the presuit notice required by Section 542A.003 and incentivized by the loss of attorneys' fees under Section 542A.007(d).

Accordingly, the court concluded, Tarantino could not recover attorneys' fees incurred from litigating against Westchester after the date Westchester filed its motion with the court.

The case is Tarantino Properties, Inc. v. Commercial Ins. Group, No. H-19-834 (S.D. Tex. May 3, 2019). Attorneys For Tarantino Properties, Inc., Plaintiff: Eric Scott Lipper, LEAD ATTORNEY, Hirsch Westheimer PC, Houston, TX; Christin L. Grant, Feldman and Feldman PC, Houston, TX. For Commercial Insurance Group, Defendant: Michael W Moran, LEAD ATTORNEY, Jackson Walker LLP, Dallas, TX; Paul K Nesbitt, LEAD ATTORNEY, Kelly Sutter et al, Houston, TX. For Westchester Surplus Lines Insurance Co., Defendant: Alasdair Andrew Roberts, Frank Anthony Piccolo, Preis PLC, Houston, TX. For All Risks, Ltd., Acrisure, LLC d/b/a Commercial Insurance Solutions Group, Defendants: Kevin Lamar Sewell, LEAD ATTORNEY, Martin Disiere Jefferson & Wisdom LLP, Dallas, TX.